EEOICPA BULLETIN NO.02-06
Subject: Expanding covered time frames for atomic weapon employers and beryllium vendors.
Background: The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has received numerous claims where the period of alleged employment falls completely outside of the covered time frame, as shown on the Department of Energy (DOE) web site, for a designated atomic weapon employer (AWE) or Beryllium (Be) vendor. Neither the statute nor the regulations address how a Claims Examiner (CE) is to handle such a situation. Accordingly, procedures are required for determining whether an expansion of the covered time frames for designated AWEs or Be vendors is warranted.
While the responsibility for designating AWE or Be vendor sites rests with the DOE, the DEEOIC is responsible for establishing the covered time frames for each designated employer. Deciding covered time frames relies on the presence of probative evidence substantiating a connection between the DOE and an entity that either supplied beryllium for use by the DOE or processed radioactive material for use in the production of an atomic weapon.
The procedures outlined in this bulletin describe how a claimant is to be granted the opportunity to expand the covered time frame for designated AWE and BE vendor facilities. The DEEOIC will review any additional documentation submitted by a claimant in order to determine if it is of sufficient probative value to warrant the expansion of the covered time frame for a designated AWE or Be vendor. This will ensure any decision issued is based on all available documentation.
Reference: 42 USC 7384l (3)-(6)
Purpose: To notify the District Offices of the procedures for handling a claim where the claimed period of employment falls outside of the established time frame for a designated AWE or Be vendor.
Applicability: All Staff
1. The CE must identify each period of claimed employment for a designated AWE or Be vendor. To determine employer designation, the CE should cross-reference claimed employers against the list of designated AWEs or Be vendors in the Federal Register or provided by the DOE on their covered facilities web site.
2. Once the CE identifies claimed employment at a designated AWE or Be Vendor facility, action should be taken to verify employment. The evidence of file must show employment occurred as alleged. The CE should follow the normal routine for verifying employment as discussed in the DEEOIC procedure manual and prior program bulletins. If, after appropriate development, there is insufficient evidence to verify employment, the CE should not accept the claimed period of employment as factual.
3. If the CE verifies employment at a designated AWE or Be vendor facility, the dates should be compared against the recognized covered time frame for the employer. The CE should initially consult the DOE sponsored facilities web page to determine whether the period of verified employment falls within the covered time frame. The dates provided on the web site are considered sufficiently reliable in deciding whether employment occurred at an AWE or BE vendor during a covered time frame. However, the CE must be aware that any challenge to the listed dates by the claimant or in any instance where the information provided on the web site is unclear or speculative, the National Office is responsible for clarification. If there is a dispute or some other discrepancy over the dates of coverage listed on the DOE sponsored facilities web page, the CE should contact the National Office for guidance.
4. If the claimed period of employment has been verified, but is completely outside of the covered time frame listed on the DOE web site or established upon consultation with the National Office, the CE should prepare a letter for the claimant. The letter must explain the deficiency concerning the claimed dates of employment. The CE must describe the requirement that employment at a designated AWE or Be vendor must be established during a covered time frame. A description of what constitutes an AWE or Be vendor should be provided along with the existing dates of coverage for the named facility. The claimant should also be asked to supply any pertinent evidence substantiating that the named AWE or Be vendor time frames should be expanded. Pertinent evidence includes any documentation supporting that the employee was present when the facility contracted with the DOE to provide services related either to processing beryllium for the U.S. Government or radioactive materials for use in atomic weapons. For example, the claimant can be asked to submit evidence such as contractual documents, business reports, internal memos, purchase orders, news articles, affidavits, etc. A period of 30 days can be granted to the claimant to submit evidence in support of the claim. At the discretion of the CE, extensions may be granted up to a maximum of 60 days.
5. After appropriate development, the CE must decide whether any evidence submitted warrants a referral to the National Office. If the claimant has submitted pertinent evidence in regard to expanding the covered time frame for the named facility, the CE will prepare a brief memo to file explaining the circumstances of the situation and request a review of the case file by the National Office. The memo should request the NO to make a determination regarding the expansion of the dates of AWE or Be vendor designation. The memo along with the entire case file should be transferred to the National Office. If the claimant is unable to provide additional information or provides documentation that is not pertinent to the covered time frame, the CE will proceed with a finding that verified employment could not be established during a covered time frame for the facility. It should be noted that mere exposure to residual radiation subsequent to a period of AWE designation is not sufficient to warrant a referral to the National Office. The employee must demonstrate employment during a period of time that the facility was actively engaged in activities related to processing radioactive materials to be used in U.S. atomic weapons.
6. When the claim is received by National Office, a review of the new evidence will be conducted to determine if it warrants expansion of the covered dates of AWE or Be vendor designation. The National Office will obtain copies of all pertinent documentation concerning the claimed AWE or Be Vendor from DOE. Any new evidence submitted by the claimant will be reviewed in conjunction with the DOE documentation to determine if sufficient evidence exists to expand the covered time frame for the facility. Once the National Office has completed its evaluation, a memo will be prepared describing the findings. The memo will reference specific documentation, or lack thereof, substantiating the determination. The memo will be spindled into the case file along with relevant evidence establishing the covered time frame. Copies of all documentation from the Department of Energy and the claimant will be maintained in a centralized file location at the National Office.
7. The case file will be returned to the District Office. Once the case has been received, the CE will proceed to develop any outstanding items and issue a recommended decision. For the recommended decision, the CE should summarize the findings from the NO employment time frames memo in the statement of the case section of the decision. The CE can advise the claimant that the memo and other employment records are available for review if requested in writing to the district office. A copy of the NO memo and the pertinent documentation supporting the covered time frames will not be attached to the recommended decision.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
Peter M. Turcic
Director, Division of
Energy Employees Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections